Citation Nr: 0840120
Decision Date: 11/21/08 Archive Date: 11/25/08
DOCKET NO. 05-20 124 ) DATE
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On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to service connection for a cerebral-vascular
accident, as secondary to service-connected hypertension.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Fell, Associate Counsel
INTRODUCTION
The veteran served on active military duty from February 1987
to August 1989. This matter comes to the Board of Veterans'
Appeals (Board) on appeal from a rating decision by the
Wichita, Kansas Regional Office (RO) of the Department of
Veterans Affairs (VA).
The Board notes that the veteran submitted a claim for
entitlement to an increased evaluation for his service-
connected hypertension concurrently with his claim for
entitlement to service connection for a cerebral-vascular
accident, to include as due to service-connected
hypertension. Accordingly, this matter is referred to the RO
for appropriate action.
FINDING OF FACT
The competent medical evidence of record does not support a
finding that the veteran's cerebral-vascular accident was
caused or aggravated by his service-connected hypertension.
CONCLUSION OF LAW
A cerebral-vascular accident is not proximately due to or the
result of service-connected hypertension. 38 U.S.C.A.
§§ 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.310 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
With respect to the veteran's claim for entitlement to
service connection for a cerebral-vascular accident (CVA), to
include as secondary to service-connected hypertension, VA
has met all statutory and regulatory notice and duty to
assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2008). Prior to initial
adjudication of the veteran's claim, a June 2004 letter
satisfied the duty to notify provisions. 38 U.S.C.A. §
5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16
Vet. App. 183, 187 (2002). Although the letter did not
notify the veteran of effective dates or the assignment of
disability evaluations, there is no prejudice to the veteran
because the preponderance of the evidence is against service
connection for a CVA, to include as secondary to service-
connected hypertension. See Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006); see also Bernard v. Brown, 4 Vet. App.
384, 394 (1993). The letter also essentially requested that
the veteran provide any evidence in his possession that
pertained to this claim. 38 C.F.R. § 3.159(b)(1). Further,
the purpose behind the notice requirement has been satisfied
because the veteran has been afforded a meaningful
opportunity to participate effectively in the processing of
his claim, to include the opportunity to present pertinent
evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir.
2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir.
2007) (holding that although VCAA notice errors are presumed
prejudicial, reversal is not required if VA can demonstrate
that the error did not affect the essential fairness of the
adjudication).
The veteran's service treatment records, identified private
medical records, VA medical treatment records, and VA
examination reports have been obtained. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159. VA hypertension and VA brain and spinal
cord examinations were provided to the veteran for the
purpose of soliciting an opinion as to the etiology of the
veteran's CVA. McLendon v. Nicholson, 20 Vet. App. 79
(2006). There is no indication in the record that additional
evidence relevant to the issue decided herein is available
and not part of the claims file. See Pelegrini, 18 Vet. App.
112. As there is no indication that any failure on the part
of VA to provide additional notice or assistance reasonably
affects the outcome of this case, the Board finds that any
such failure is harmless. See Mayfield v. Nicholson, 20 Vet.
App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet.
App. 473.
Generally, service connection may be established for
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. §§ 1131, 1137; 38 C.F.R.
§ 3.303(a). Service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Under section 3.310(a) of VA regulations, service connection
may also be established on a secondary basis for a disability
which is proximately due to or the result of service-
connected disease or injury. 38 C.F.R. § 3.310(a).
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability
exists and (2) that the current disability was either (a)
proximately caused by or (b) proximately aggravated by a
service-connected disability. Allen v. Brown, 7 Vet. App.
439, 448 (1995) (en banc). Where a service-connected
disability aggravates a nonservice-connected condition, a
veteran may be compensated for the degree of disability (but
only that degree) over and above the degree of disability
existing prior to the aggravation. Allen, 7 Vet. App. at
448. Temporary or intermittent flare-ups of symptoms of a
condition, alone, do not constitute sufficient evidence of
aggravation unless the underlying condition worsened. Cf.
Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002);
Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).
The provisions of 38 C.F.R. § 3.310 were amended, effective
from October 10, 2006; however, the new provisions require
that service connection not be awarded on an aggravation
basis without establishing a pre-aggravation baseline level
of disability and comparing it to current level of
disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although
the stated intent of the change was merely to implement the
requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the
new provisions amount to substantive changes to the manner in
which 38 C.F.R. § 3.310 has been applied by VA in Allen-type
cases since 1995. Consequently, the Board will apply the
older version of 38 C.F.R. § 3.310, which is more favorable
to the claimant because it does not require the establishment
of a baseline before an award of service connection may be
made.
In order to establish entitlement to service connection on
this secondary basis, there must be (1) evidence of a current
disability; (2) evidence of a service-connected disability;
and (3) medical evidence establishing a nexus (i.e., link)
between the service-connected disability and the current
disability. See Wallin v. West, 11 Vet. App. 509, 512
(1998).
The Board has thoroughly reviewed all the evidence in the
veteran's claims folder. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, all of the
evidence submitted by the veteran or on his behalf. See
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, on the claim. The
veteran must not assume that the Board has overlooked pieces
of evidence that are not explicitly discussed herein. See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the claimant).
Service treatment records, private medical records, and VA
medical records demonstrate the veteran's history of alcohol
and tobacco usage. Specifically, a June 1993 VA medical
record noted that the veteran stopped using tobacco two years
prior. In a June 2002 VA medical record, the examiner noted
that the veteran stopped using alcohol three months prior and
stopped using tobacco ten years prior. Private medical
records from May 2004 demonstrate that the veteran was
hospitalized for six days for a CVA. In the August 2004 VA
hypertension examination, the veteran reported that he was
noncompliant with his hypertension medication regimen prior
to May 2004.
In the August 2004 VA brain and spinal cord examination, the
veteran provided a detailed history of the CVA he experienced
in May 2004. The veteran reported that since the CVA he
stutters, has to search for words, and has difficulty with
simple tasks due to a need to think about them before
performing them. The VA examiner reviewed the claims file
and provided an examination. The examiner found speech
apraxia. The examiner opined that the veteran's CVA was not
as likely as not related to hypertension and listed "other"
risk factors including alcohol abuse, tobacco abuse,
hyperlipidemia, and noncompliance. The RO required further
clarification of the VA opinion as "other" risk factors
indicated that hypertension was also a risk factor. In an
addendum approximately two weeks after the examination, the
examiner clarified the earlier opinion and stated that the
veteran's CVA was a small vessel ischemic event with etiology
of arteriosclerosis from hyperlipidemia, tobacco use, and
alcohol abuse. The examiner distinguished the veteran's CVA
from a large vessel ischemic event which would be consistent
with uncontrolled hypertension.
On a prescription slip dated December 2004, a private
physician stated that the veteran has had hypertension for
most of his adult life and was negative for tabocco or
alcohol use. The private physician opined that hypertension
was his vascular risk item and as such, was causitive of the
May 2004 CVA. There is no indication that the examiner
reviewed the veteran's claims file.
The Board finds that there is evidence of a current
disability and evidence of a service-connected disability;
however, there is insufficient medical evidence establishing
a nexus between the service-connected hypertension and the
CVA. See Wallin, 11 Vet. App. at 512.
An evaluation of the probative value of medical opinion
evidence is based on the medical expert's personal
examination of the patient, the examiner's knowledge and
skill in analyzing the data, and the medical conclusion
reached. The credibility and weight to be attached to such
opinions are within the province of the Board as
adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71
(1993). Greater weight may be placed on one physician's
opinion over another depending on factors such as reasoning
employed by the physicians and whether or not and the extent
to which they reviewed prior clinical records and other
evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).
The probative value of a medical opinion is generally based
on the scope of the examination or review, as well as the
relative merits of the expert's qualifications and analytical
findings, and the probative weight of a medical opinion may
be reduced if the examiner fails to explain the basis for an
opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993).
The Board finds the August 2004 VA examination, which
concluded that there was no relationship between the
veteran's CVA and his service-connected hypertension, to be
highly probative because the VA examiner obtained a detailed
history from the veteran, conducted a thorough examination of
the veteran, and reviewed the claims file. See Prejean v.
West, 13 Vet. App. 444, 448-9 (2000) (holding that factors
for assessing the probative value of a medical opinion are
the physician's access to the claims file and the
thoroughness and detail of the opinion); see also Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the
Board is not free to substitute its own judgment for that of
an expert). The examiner also provided a detailed rationale
for his opinion, which described the different types of CVA,
identified that type of CVA the veteran experienced, and
identified the etiology of such a CVA which did not include
hypertension. The December 2004 private physician's opinion
included no rationale, no details regarding CVAs and
hypertension, and did not appear to include a review of the
claims file. See Prejean, 13 Vet. App. 448-9; see also Sklar
v. Brown, 5 Vet. App. 140, 145-46 (1993) (noting that the
probative value of a medical opinion is diminished where the
opinion is ambivalent). The Board finds that the August 2004
VA examination was much more definitive and therefore, of
higher probative value than the December 2004 private
physician's opinion.
The Board and the VA examiner have considered the veteran's
own statements pertaining to the etiology of his CVA. While
the Board does not doubt the sincerity of the veteran's
belief that his CVA is related to his service-connected
hypertension, as a lay person without the appropriate medical
training or expertise, he is not competent to provide a
probative opinion on a medical matter-such as the etiology of
a current disability. See Bostain v. West, 11 Vet. App. 124,
127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992)).
For all the foregoing reasons, the Board finds that the claim
of service connection for a CVA, as secondary to service-
connected hypertension must be denied. In reaching this
conclusion, the Board has considered the applicability of the
benefit-of-the-doubt doctrine; however, as the preponderance
of the evidence is against the veteran's claim of service
connection, that doctrine is not applicable. See 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d
1361, 1365 (Fed. Cir. 2001).
ORDER
Entitlement to service connection for a cerebral-vascular
accident, as secondary to service-connected hypertension is
denied.
____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs